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SYLLABUS
DECISION
GUTIERREZ, JR. , J : p
This is an appeal from the decision of the Regional Trial Court of Aparri, Branch 8,
the dispositive portion of which reads:
"WHEREFORE, in view of the foregoing considerations, the Court nds the
accused Mariano Umbrero, Jaime (Jimmy) Agluba and Alfredo Costales alias
Pido, guilty of the crime of MURDER as de ned and penalized under Article 248
of the Revised Penal Code and therefore sentences each of them to suffer the
penalty of RECLUSION PERPETUA; to pay jointly and severally an indemnity of
THIRTY THOUSAND (P30,000.00) PESOS to the heirs of Alfonso Urbi; and each
of them to pay 1/7 of the costs." (Rollo, p. 31)
The information filed against the accused reads:
That on or about November 29, 1980, in the Municipality of Lallo,
province of Cagayan, and within the jurisdiction of this Honorable Court, the
said accused, Mariano Umbrero, Alfredo Costales alias Pido, Jimmy Agluba and
Leon Ceria, together with Eugenio Rigon alias Inyong, Bartolome Tangonan and
Danny Costales who are still at-large and not yet arrested, armed with guns,
conspiring together and helping one another, with intent to kill, with evident
premeditation and with treachery, did then and there wilfully, unlawfully and
feloniously assault, attack and shoot one, Alfonso Urbi, in icting upon the latter
wounds on his body which caused his death.
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That the offense was committed with the following aggravating
circumstances, to wit: (a) that it was committed with abuse of superior strength,
and (b) that it was committed by a band." (Records, p. 33)
The accused Mariano Umbrero, Alfredo Costales, Jimmy Agluba and
Leon Ceria pleaded not guilty on arraignment. The other accused, Eugenio
Rigon, Bartolome Tangonan, and Danny Costales were not arraigned as they
were still at large.
The prosecution evidence upon which the trial court based its nding of
guilt beyond reasonable doubt is as follows:
xxx xxx xxx
". . . Angelina Urbi Ragsac, daughter of the victim Alfonso Urbi testi ed:
She was at home in Sta. Teresa at about 2:00 in the afternoon of November 29,
1980 when several armed men came, two (2) of whom shot her father under the
house, accused Alfredo Costales and Danny Costales. She was not able to
recognize the other armed men. She was two (2) meters from her father when
he was shot. Of the two accused mentioned, she only identi ed in Court
accused Alfredo Costales, Danny Costales was not present. He was the one who
shot her father. He followed her father when he ran outside the house but the
companions of Alfredo Costales followed and killed him. Alfredo Costales and
Danny Costales shot her father with short rearms. Their companions had long
rearms. All the accused ran after killing her father. She and her mother did not
do anything because they were afraid; however, they went to get the body of her
father later on. He sustained ve (5) gunshot wounds on his breast and
stomach. She reported the killing of her father to barangay captain Felix
Villamin. Thereafter she executed an af davit marked as Exhibits "E" and "E-1 "
which were admitted by the defense as part of the record. Mariano Umbrero was
among the armed men who came to their house in the afternoon of November
29, 1980. She knows him personally. prcd
Moreover, it has been held in Paredes v. Sandiganbayan (G.R. No. 89989, January
28, 1991), reiterating this Court's ruling in People v. Casiano (1 SCRA 478, [1961]), that:
"The absence of a preliminary investigation does not affect the court's
jurisdiction over the case. Nor does it impair the validity of the information or
otherwise render it defective. If there was no preliminary investigation and the
defendant, before entering his plea, calls the attention of the court to the
absence of a preliminary investigation, the court, instead of dismissing the
information, should conduct such investigation, order the scal to conduct it or
remand the case to the inferior court so that the preliminary investigation may
be conducted." (pp. 7-8)
The appellant never asked for or called the attention of the court before entering
his plea, as to the absence of a preliminary investigation. His right to preliminary
investigation, then is deemed waived as he failed to invoke such right prior to or, at
least, at the time of the entry of his plea in the court of first instance. (People v. Casiano,
p. 483, supra) The entry of their plea constituted a waiver of their right to preliminary
investigation and any irregularity that attended it. (See People v. La Caste, 37 SCRA 767,
773 [1971])
Jurisdiction was acquired by the Court over the person of Mariano Umbrero as
the accused appeared at the arraignment and pleaded not guilty to the crime charged.
(See Gimenez v. Nazareno, 160 SCRA 1, 5 [1988])
In the second assigned error, the appellants contend that there was no
conspiracy, thus, they should all be adjudged as innocent. They asserted that mere
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presence at the scene of the crime does not by itself indicate the existence of
conspiracy. There must be proof of their participation in the crime.
This contention must fail.
It is well-settled rule that conspiracy need not be proved by direct evidence but
can be inferred from the acts of the accused. (People v. Alitao, G.R. No. 74736, February
18, 1991) The appellants' actuations immediately prior to, during, and right after the
shooting of Alfonso Urbi indicate their common intention to commit the crime. The
appellants were not merely present at the scene of the crime. The prosecution
witnesses positively identi ed the appellants as among the armed men who arrived at
the scene of the crime, shot Alfonso Urbi, and left together after apparently
accomplishing their purpose. (TSN, April 10, 1985, pp. 2, 7; TSN, August 5, 1985, pp. 2,
6; TSN, August 28, 1985, pp. 2-3).
The trial court stated:
xxx xxx xxx
"It will be recalled that accused Mariano Umbrero, Jaime Agluba and
Alfredo Costales, alias Pido and others were all armed when they went together
to the house of the victim Alfonso Urbi. They were close to Danny Costales
when he (Danny) asked for water which was not their common purpose.
Alfonso Urbi got near to see them. Suddenly he was shot by Danny Costales. He
ran outside the house but was overtaken by Danny Costales who pumped more
shots on him all located on the vital parts of the body, causing his
instantaneous death. They all left together upon accomplishing their purpose.
The accused were all holding their rearms on their sides, while others stood
guard and surrounded the house. The acts performed by all the accused before,
during and after the perpetration of the crime are indicative of a previous
criminal design and unity of common purpose." (Rollo, p. 30)
The appellants although not active participants in the killing itself, made no effort
to prevent it. In fact, the appellants even drew the guns that were tucked on their waists
when Alfonso Urbi, after being shot for the rst time, tried to run outside of his house.
(TSN, August 5, 1985, pp. 18-19)
Conspiracy having been established, the appellants as co-conspirators are all
guilty on the principle that the act of one is the act of all. (People v. de Guzman, 162
SCRA 145, 153 [1988])
The defense of alibi of the appellants is without merit. The appellants were
positively identi ed by the prosecution witnesses as the witnesses were only a few
meters away from the crime scene. (TSN, April 10, 1985, p. 3; TSN August 5, 1985, p. 5)
The defense of alibi cannot prevail over the positive identi cation by the
prosecution witnesses of the appellants (People v. Kyamko, G.R. No. 95263, December
18, 1990). There is nothing in the records which would show a motive or reason on the
part of the witnesses to falsely implicate the accused. Identi cation, then, should be
given full credit. As there is no showing that the prosecution witnesses were moved by
improper motives, the presumption is that they were not so moved, their testimony
therefore, is entitled to full faith and credit. (People v. Doctolero, G.R. No. L-34386,
February 7, 1991)
In the instant case, the appellants failed to establish by clear and convincing
evidence that they were at some other place and for such a period of time as to negate
their presence at the time when and the place where the crime was committed. (See
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People v. Solis, G.R. No. 93629, March 18, 1991 citing People v. Riego, G.R. No. 90256,
September 12, 1990)
The persons that the appellants presented to corroborate their alibis were their
relatives.
Alfredo Costales and Jaime Agluba could have presented other people, aside
from their wives, to corroborate their testimony that they were at some place other
than the scene of the crime. But even the testimony of Jaime Agluba's wife did not
clearly show that Jaime Agluba was not in Sta. Teresa as she stated that during their
stay in Newagac her husband would go to the eld and it was only the wife's belief that
her husband was in the eld in the afternoon of November 29, 1980. (TSN, January 17,
1989, pp. 16-17) As regards Mariano Umbrero, he could have presented Gregorio
Cabulay (TSN, April 21, 1986, p. 27) aside from Alejandrino Umangay to support his
statement. Umangay's corroboration is not that credible as Umbrero and Umangay had
known each other ever since they were still little boys (TSN, April 21, 1986, p. 31) and
Umbrero's relative is Umangay's niece. (TSN, April 21, 1986, p. 32) It has been ruled that
the defense of alibi is weak if it is established mainly by the accused themselves and
their relatives and not by credible persons (See People v. Flores, G.R. No. 71980, March
18, 1991).
We agree with the nding of the trial court that the qualifying circumstance of
treachery is present in the case at bar.
There is treachery when the offender commits any of the crimes against the
person, employing means, methods, or forms in the execution thereof which tend
directly and specially to insure its execution, without risk to himself arising from the
defense which the offended party might make. (People v. Cempron, G.R. No. 66324,
July 6, 1990; People v. Manzanares, 177 SCRA 427, 434, [1989])
The shooting of Alfonso Urbi was sudden and unexpected. The victim was
unarmed, unable to defend himself He was an unsuspecting victim as the assailants
just asked for a drink of water. (TSN, April 10, 1985, p. 20; TSN, August 5, 1985, p. 2) He
was totally unprepared to be able to defend himself.
On the other hand, evident premeditation was not clearly established, contrary to
the ndings of the trial court. Although conspiracy existed, it was merely inferred from
the acts of the accused in the perpetration of the crime, the requisites necessary to
appreciate evident premeditation have not been met in this case. (See People v. Repe,
175 SCRA 422, 435 1989]) The prosecution failed to prove all of the following: (a) the
time when the accused determined to commit the crime; (b) an act manifestly
indicating that the accused had clung to their determination to commit the crime; and
(c) the lapse of suf cient length of time between the determination and execution to
allow him to re ect upon the consequences of his act. (People v. Iligan, G.R. No. 75369,
November 26, 1990; People v. Montejo, 167 SCRA 506, 513 [1988]) cdrep
Aid of armed men should also not be appreciated in this case, considering that
the assailant as well as the appellants were in conspiracy. (See People v. Candado, 84
SCRA 508, 524 [1978]; People v. Piring, 63 Phil. 546, 553 [1936])
The fact that Judge Tumacder did not preside at the trial of this case in its
entirety, having taken over only when the second defense witness was to be presented,
did not detract from his appreciation of the prosecution evidence. The full record was
available to him. (See People v. Abaya, 185 SCRA 419, 424 [1990])
In view of the foregoing, the appellants were correctly found guilty beyond
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reasonable doubt of murder, but without the attendant circumstances of evident
premeditation and aid of armed men. The penalty to be imposed is reclusion perpetua.
The indemnity to the heirs of the deceased is raised to FIFTY THOUSAND PESOS
(P50,000.00).
WHEREFORE, the appealed decision is hereby AFFIRMED with the aforesaid
MODIFICATION.
SO ORDERED.
Fernan, C.J., Feliciano, Bidin and Davide, Jr., JJ., concur.